Evers v. Custer County

• Decision Date: 22 October 1984
• Docket Number: 83-3716 and 83-4002,Nos. 83-3605,s. 83-3605
• Citation: 745 F.2d 1196
• Parties: Carole K. EVERS, an individual, Plaintiff-Appellant-Cross Appellee, v. The COUNTY OF CUSTER; Clyde Rigby, Custer County Commissioner, et al., Defendants-Appellees-Cross Appellants. Thurlo H. FRENCH and Dorothy French, Counterclaimants-Appellees, v. Carole K. EVERS, an individual, Counterdefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1196

745 F.2d 1196

Carole K. EVERS, an individual, Plaintiff-Appellant-Cross Appellee, v. The COUNTY OF CUSTER; Clyde Rigby, Custer County

Commissioner, et al., Defendants-Appellees-Cross

Appellants.

Thurlo H. FRENCH and Dorothy French, Counterclaimants-Appellees, v. Carole K. EVERS, an individual, Counterdefendant-Appellant.

Nos. 83-3605, 83-3716 and 83-4002.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1983.

Decided Oct. 22, 1984.

Steven J. Millemann, McCall, Idaho, for Carole K. Evers.

Jon S. Gorski, R.B. Rock, Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for defendants-appellees-cross appellants.

Robert M. Tyler, Elam, Burke, Evans, Boyd & Koontz, Boise, Idaho, for counterclaimants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before ANDERSON and FLETCHER, Circuit Judges, and EAST, ^* District Judge.

FLETCHER, Circuit Judge:

Evers appeals from a summary judgment in favor of all defendants on her claim under 42 U.S.C. Sec. 1983 (1982) and from an award of attorney's fees to defendants Dorothy and Thurlo French. Defendants Custer County and Commissioners Rigby, Maraffio, and Uresti appeal from the denial of their motion for attorney's fees.

FACTS

Appellant Evers purchased the Robinson Bar Ranch in June of 1981. The ranch is located next to the Salmon River and is surrounded by land belonging to the United States Forest Service. The Robinson Bar Road runs through the ranch, and connects with a highway a few miles east and west of the ranch. Believing that the portion of the road crossing her land was private property, Evers locked the gate across the road on the east and west entrances to the ranch.

Many people were upset about the closing of the road. Neighbors, including the Frenches, had used it to gain access to their property. Although the neighbors could reach their property by other routes, the other roads were either more dangerous or less convenient. Members of the public had also used the road to reach areas of the surrounding national forest used for recreational purposes. Two years earlier, when the previous owners had put up the gates, hundreds of people had signed a petition asking the county to have the gates removed.

Throughout the summer many persons, including the Frenches, complained to the Commissioners about the closing of the road, although Evers had given the Frenches the combinations to the locks and permission to use it. The Forest Service had been attempting to obtain a right-of-way across the ranch, and was active in encouraging the Commissioners to declare the road public.

In August of 1981, the local newspaper reported that the road had been discussed at a meeting of the County Commissioners. The Frenches were present at that meeting. The newspaper reported that the Commissioners said the road had already been declared public. It is not clear whether the declaration had already been made at that time, but on September 16, 1981, the Commissioners signed, and later recorded, a "Declaration of Public Road," announcing that the road was public under Idaho Code Sec. 40-103 (1977), which provides that a road that has been used by the public for five years and maintained at public expense is a public highway. ¹ There is some evidence that the road had been maintained by the Forest Service for over five years and that the public had used it, although there is considerable dispute over the significance of the maintenance and whether that use was by permission of the owners of the ranch.

After the newspaper reported that the road was public, Evers had many encounters with people who insisted they had a right to use the road and were upset by the locked gate. In late August, Evers wrote to the Commissioners, asserting that the road was private property. After considering the various options available for opening the road, on October 22, 1981 the County had the sheriff serve Evers with a copy of the declaration and citation for obstructing a public highway, a misdemeanor. ²

In November, 1981, Evers filed this suit, alleging that the County and Commissioners unconstitutionally deprived her of property without due process by issuing and recording the "Declaration of Public Road" without giving her notice and an opportunity to be heard, and by subsequently prosecuting her for obstructing a public highway. She claimed the Frenches conspired with the Commissioners to have the road declared public. She sought damages and a declaratory judgment holding the Declaration of Public Road a nullity, the Idaho statute on which it was based unconstitutional, and the road her private property. The Frenches cross-complained, alleging they had a prescriptive easement over the road in question.

The district court granted summary judgment in favor of all defendants. It held that the issuance and recording of the Declaration did not constitute a deprivation of property because it was merely a recognition of the fact that the road had become public by the operation of Idaho law. The declaration did not create or destroy any legal rights and the County, the court held, had not attempted to exercise control over the road. The court noted that there was some question as to what property right, if any, Evers had in the road. Accordingly, the court found that there was no basis for Evers's federal claims and granted the County and Commissioners' motions for summary judgment. The court also held that the County was not liable under section 1983 because the alleged violation of Evers's right to due process was not the result of an official County policy, and that the Commissioners were also immune from suit because they had not violated clearly established constitutional rights of which a reasonable person should have been aware.

The court granted the Frenches' motion for summary judgment, finding there was no evidence they had engaged in a conspiracy to deprive Evers of her constitutional rights. The Frenches' motion for attorney's fees was granted. The court dismissed the Frenches' counterclaims, along with Evers's remaining claims concerning rights to the road, because there was no longer a federal question in the case. The County defendants' post-trial motion for attorney's fees was also denied.

DISCUSSION

Due Process

In reviewing the grant of summary judgment in favor of defendants, we draw all permissible inferences in favor of the plaintiff. See Ruffin v. County of Los Angeles, 607 F.2d 1276, 1279 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980). Summary judgment is proper only if the facts, viewed in this light, could not, as a matter of law, support a judgment in favor of the plaintiff. 607 F.2d at 1280. Applying that standard to this case we find the district court erred in concluding that the County had not interfered with Evers's property rights and that, therefore, it had not violated her constitutional rights by issuing and recording the Declaration of Public Road without giving her notice and an opportunity to be heard.

Evers argued that the county deprived her of property by recording the Declaration, thereby clouding her title; by encouraging the public to use the road; and by subjecting her to criminal charges. The district court found, and the county defendants now argue, that the issuance of the

Declaration did not deprive Evers of any property right.

1. Evers's Property Interest.

Evers's claim that she owns the road is not frivolous. The road crosses her property and the previous owners considered it private although they gave the public permission to use it. There were gates where the road entered the ranch when Evers bought it. The road was officially abandoned by the county in 1939. The effect of such abandonment under Idaho law is to vest title in the adjacent landowners. Although the district court expressed its opinion that her claim was probably not valid, the record reveals at least some legal and factual basis for her claim that the road is private. Although Evers's interest in the road is a matter of dispute, her colorable claim may give her a constitutionally protected property interest in it. The showing is sufficient to require a trial on the merits. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (appellants' interest in chattels protected by fourteenth amendment even though their right to continued possession was a matter of dispute); McCulloch v. Glasgow, 620 F.2d 47 (5th Cir.1980) (plaintiff entitled to due process before state built road on land to which both claimed title).

2. Deprivation of Property.

The County argues that the issuance of the Declaration was not a significant interference with Evers's interests and therefore did not require prior notice and a hearing. Under Idaho law, a road becomes public by public use and maintenance over a five-year period. Idaho Code Sec. 40-103. ³ The declaration does not determine the legal status of the road. See State v. Nesbitt, 79 Idaho 1, 310 P.2d 787 (1957) (upholding conviction for obstruction of public highway that had been acquired by the operation of section 40-103 even though it had not been recorded as public by the County Commissioners). Thus, the County argues, the Declaration was no more than a statement of the County's intent to treat the road as public. It had no legal effect on Evers's rights. The County argues that this case fits within the line of cases holding that merely designating an area for condemnation or appropriation does not amount to a taking of property. See, e.g., Thompson v. Tualatin Hills Park and Recreation District, 701 F.2d 99 (9th Cir.1983) (filing of condemnation action, later dropped, was not a taking); see also Matter of Northwest Homes of Chehalis, Inc., 526 F.2d 505 (9th Cir.1975), cert. denied, sub nom. Hansen v. Weyerhaeuser Co., 425 U.S. 907, 96 S.Ct. 1501, 47 L.Ed.2d 758 (1976) (upholding Washington statute allowing attachment of d...